Posts Tagged ‘paternity claims’

OCTOBER 17, 2016 VOLUME 23 NUMBER 39
Kelly and Sam are a married couple. They want to have a child, but cannot do so together, so they agree that Kelly will undergo artificial insemination. The process is successful, and Kelly delivers a beautiful baby boy, Edward.

Does Sam have any duty to support Edward? If Kelly and Sam get divorced, will Sam have any chance at custody, or joint custody, of Edward? If not, does Sam have any right to visitation with Edward?

Take this question forward a few years. Imagine that Kelly and Sam do get divorced, and Sam dies shortly after the divorce is final (without having written a will). Does Edward get any share of Sam’s estate — or perhaps Sam’s entire estate?

These questions may seem easy. Yes, of course Sam has a duty of support. Of course Sam has a chance at custody (and in any event, visitation) upon Kelly and Sam’s divorce. Of course Edward is an heir to Sam’s estate.

Oh — we left out an important element. Kelly and Sam are both women. Their marriage is recognized because of the 2015 U.S. Supreme Court decision in Obergefell v. Hodges. That landmark court decision holds that same-sex marriages are entitled to the same legal status, protections and liabilities as heterosexual marriages.

Arizona law says that when a child is born to a married couple, the husband is presumed to be the child’s father. Does that mean that a same-sex partner is presumed to be the father? Or a second mother? And if the law creates just a “presumption” of paternity, can that be overcome by proof of the biological impossibility of one woman impregnating another?

This is an interesting thought experiment — except that it’s a real question in an actual Arizona court case. We’ve changed the names of all the principals, but this very story played out in a courtroom in Tucson last spring. Kelly had filed for a divorce, and argued that Sam had no right to consideration for custody of or visitation with Edward.

The trial court judge determined that it would be impermissible to create a presumption for a married man that would not apply to a similarly-situated spouse just because she was a woman. Besides, Kelly and Sam had entered into an agreement before Edward was born — they had agreed to be treated as co-equal parents and to seek a “second parent” adoption if they ever resided in a state that permitted same-sex couples to formally adopt one another’s children (Arizona does not clearly authorize such proceedings).

Kelly sought review by the Arizona Court of Appeals, which agreed to take the case under “special action” jurisdiction (even though the underlying case has not been concluded). Last week the Court of Appeals agreed with the trial judge — though with a slightly different shading in their interpretation. As the appellate court notes, the “presumption” that a married partner is the father of a child born during the marriage is not based only on biology. It is also partly a response to the social policy that favors giving a child a right to support from and attachment to a person who has assumed the role of parent.

None of that, ruled the appellate court, is different just because Sam is a woman. Accordingly, the custody/visitation/support case should proceed as if the Arizona statute was gender-neutral, and Sam should enjoy the presumption that she is Edward’s parent. McLaughlin v. Jones, October 11, 2016.

Kelly and Sam’s legal case is (we think) a fascinating analysis of the differences we have to confront as same-sex marriage becomes clearly embedded in our legal framework. But, because of what we do here at Fleming & Curti, PLC, we’re mostly interested in the probate and inheritance implications of their legal case.

Clearly, Edward is now an heir of Sam. If Sam were to die without writing a will, a portion of her estate — and perhaps all of her estate — would pass to Edward. If Kelly were to die, Sam would have the right to full custody of Edward — even if Kelly had nominated someone else to serve as Edward’s guardian.

Interestingly, the words “father” and “mother” do not appear anywhere in Arizona’s Probate Code (Title 14 of the Arizona Revised Statutes). References to “parent” or “parents” should be easy to work with, and the gender of a decedent’s spouse is irrelevant under existing probate law.

In another generation, though, there will be some oddities. If, for example, Edward were to grow up, have children of his own and then die without writing a will, his estate might pass half to his “maternal” and half to his “paternal” family lines. We can hope that by that time, Arizona’s statutory language will have caught up with the times.

NOVEMBER 21, 2011 VOLUME 18 NUMBER 40
Paternity testing has come a long way in the last few decades. You might reasonably think that it is now so easy to establish parentage that probate court disputes about the subject would be largely a thing of the past. If you thought that, you’d be wrong. Just ask Thomas Powell.

Mr. Powell’s experience in probate court began with the death of Oklahoma resident Valatus Merral Dicksion. Mr. Dicksion had been married, but his wife had died before him. He and his wife had two adult daughters. Mr. Dicksion left a four-page handwritten will, which originally had named one of his daughters as administrator of his estate. Someone had crossed out that portion of the will.

Mr. Dicksion’s brother filed the handwritten will with the probate court. He listed the two daughters as heirs, and described the will as being in his brother’s handwriting and signed by him. The court appointed him as personal representative.

A few months after the probate proceeding was initiated, Mr. Powell filed a petition seeking recognition of his status as a son of the decedent. He argued that the decedent had a relationship with Mr. Powell’s mother, and that his mother put him up for adoption shortly after his 1952 birth.

Mr. Powell and the decedent’s brother both agreed to DNA testing to see if paternity could be confirmed. The paternity testing results were conclusive: Mr. Powell was in fact the decedent’s biological son. The probate court then entered an order determining that he was an “unintentionally omitted” heir, and awarded him the same share of the decedent’s estate that he would have received if Mr. Dicksion had died without signing a will at all.

As the probate estate was wrapping up, Mr. Powell joined his half-sister in objecting to the validity of the handwritten will and sought removal of the decedent’s brother as personal representative. The probate court denied his objections and approved the final accounting of the estate. The probate judge also denied the personal representative’s request that Mr. Powell be ordered to pay the estate’s additional attorney’s fees incurred in responding to his requests.

Mr. Powell appealed to the Oklahoma Court of Appeals, which ruled (among other things) that the DNA testing should not have been used to determine paternity after Mr. Dicksion’s death — that paternity must be established before an alleged father’s death. Mr. Powell then appealed that result to the Oklahoma Supreme Court.

The state high court rewrote the outcome substantially in Mr. Powell’s favor. First, the justices decided that post-death paternity testing CAN be used to determine heirship, at least in Oklahoma. Then they ruled that an Oklahoma law preventing a decedent’s business partner from being appointed to administer an estate should have been applied to Mr. Dicksion’s brother. Finally, they ruled that the contest of Mr. Dicksion’s alleged will should have been formally resolved before the estate could be closed. In Matter of the Estate of Dicksion, November 15, 2011.

The decision was not unanimous. Of the nine members of the Oklahoma Supreme Court, five voted to uphold Mr. Powell’s paternity determination and four argued that prior Oklahoma court decisions should have been followed (which would have prevented the DNA tests from being used). The four dissenting justices did not address questions about the appointment of Mr. Dicksion’s brother as personal representative, or the status of the unresolved will contest.

Mr. Dicksion’s family situation and probate proceeding make for an interesting story. They also cast a little light on how probate contests can sometimes arise, and how resolution of disputes can be difficult and unclear (witness the 5-4 decision of the Oklahoma Supreme Court). It would be a mistake, however, to generalize too much from the result in this case.

All three parts of the Oklahoma Supreme Court holding are dependent on the peculiarities of Oklahoma law. The statute for determining paternity (and its effect on a will not mentioning a previously unknown child) is unusual in Oklahoma, and unlike that in Arizona. The prohibition on business partners being appointed as personal representative (unless mentioned in a will) is also unique to Oklahoma, and does not have an Arizona counterpart. Finally, Oklahoma is one of the minority of states which permits a “holographic” will to be valid (Wikipedia reports that 19 of the 50 U.S. states permit holographic wills — we haven’t checked that assertion, but it sounds about right to us). Arizona, like Oklahoma, does recognize holographic wills; in Arizona, a valid holographic will must have the signature and “material provisions” in the testator’s handwriting.

So what useful information is in the appellate decision in Mr. Dicksion’s probate case? Well, we might generalize a handful of principles:

Know the local law, and update your estate planning if you move. While we might not be too concerned about the possibility of unknown descendants in Arizona, Oklahoma law appears to be significantly different. Whenever a client moves to another state, we urge them to meet with a lawyer in their new state to see if there are differences in state law that they should be aware of. This is the sort of difference we sometimes see and always caution about.

Deal with contingencies in the planning documents, even if it seems unnecessary. If Mr. Dicksion’s will had included a provision that said “I intentionally omit any person not specifically named herein” (or similar language) would the result have been different? Perhaps not — but it might have strengthened the argument that an unknown child should not share in the estate. Of course, this is exactly why lawyers’ documents tend to be much longer and more complicated than non-lawyers think is absolutely necessary.

If a husband and wife “bank” sperm so that the wife may conceive artificially, and the wife conceives through insemination of this sperm after the husband dies, will children resulting from such a pregnancy enjoy the inheritance rights of “natural” children in Massachusetts?

Last week the Massachusetts Supreme Judicial Court answered this question of law at the request of the federal District Court, holding that children conceived after their biological father’s death have the same rights to inherit as children conceived naturally if the genetic relationship is established and then proof is given that the deceased parent consented to the conception and to the support of the resulting children. Woodward v. Commissioner of Social Security (1/02/02) isthe first published opinion of its kind in the country.

In 1993, Warren Woodward was diagnosed with and died from leukemia. He and his wife, Lauren, “banked” sperm before his treatment started given the likelihood of sterility thereafter. In late 1995, Ms. Woodward gave birth to twin girls conceived through artificial insemination of Mr. Woodward’s sperm.

Ms. Woodward applied for but was denied federal Social Security “child’s” and “mother’s” benefits in 1996. Despite a probate and family court adjudication of paternity, SSA denied the claim. Ms. Woodward asked the federal District Court to order release of the benefits, and that Court asked the Massachusetts Supreme Judicial Court to decide the legal question.

The Massachusetts high court finds middle ground between Ms. Woodward’s view that all children conceived posthumously should inherit under state law, and the government’s view that, since such children do not exist at the time of the parent’s death, they should be strictly denied the right to inherit.

The Woodward court embraces foremost the legislature’s concern that all children get the same rights and treatment under the law regardless of ‘accidents of birth.’ The Court reasons that children conceived posthumously should be entitled to the same rights to financial support as are children conceived before a parent’s death. However, the Woodward Court also weighs the state’s interest in timely administration of estates as well its interest in insuring the integrity of the decedent’s reproductive rights. The Court speculates that limitations periods for paternity claims against estates may affect claims from posthumously conceived children. The Court also emphasizes that genetic paternity alone is not enough; the deceased parent must have had some intent to have and to support children.

Arizona has no precedent to guide similar questions. Medical technology will continue to challenge a slow-moving legal system in all states unless state legislatures take the initiative.